Summary
In Blasco, supra, the majority recognized at page 685 that "Civ. R. 60 (B) is a remedial rule and should be liberally construed," citing Colley v. Bazell, supra.
Summary of this case from Svoboda v. BrunswickOpinion
No. 81-616
Decided March 9, 1982.
Default judgment — Motion to vacate — Civ. R. 60(B) — Overruling not abuse of discretion.
APPEAL from the Court of Appeals for Cuyahoga County.
On June 10, 1976, Stephen J. Blasco and Nancy L. Blasco, plaintiffs-appellees, filed a complaint in the Court of Common Pleas of Cuyahoga County naming Mary Mislik and Irene M. Vejchar (appellant herein), as co-defendants. The parties were adjacent landowners. The subject of the dispute was appellees' driveway which ran along the common boundary and extended 18 inches, for the length of the driveway, onto defendants' land. In the complaint, the appellees alleged that although they had an easement for this aforementioned 18 inches, Irene Vejchar had threatened to obstruct it by erecting a fence. Furthermore, appellees alleged that fencing material had been delivered to the defendants. The complaint sought, inter alia, temporary and permanent orders enjoining the defendants from erecting the fence. Furthermore, the appellees' complaint prayed for compensatory damages of $10,000 "in the event that Defendants erect [ sic] a fence along the boundary line" and also punitive damages, including attorney fees of $5,000.
Mary Mislik died on February 12, 1977.
On June 11, 1976, the court granted a temporary restraining order which restrained the defendants from erecting, constructing or installing a fence of any kind whatsoever along a common boundary between the premises. Although the defendants were personally served with copies of the complaint, they failed to answer. Appellant claims that a friend, who was an attorney, but not retained by defendants, contacted appellees' counsel on defendants' behalf and stated that they would not construct a fence.
Appellees pursued the claim and filed a motion for default judgment in January 1977. On april 13, 1977, the court granted a default judgment permanently enjoining defendants from erecting a fence and also ordered defendants to pay the appellees $1,450, with interest, plus costs.
Appellant filed a motion for relief from judgment pursuant to Civ. R. 60 on February 8, 1979. On May 1, 1980, the court overruled appellant's motion for relief from the default judgment. In a split decision, the Court of Appeals affirmed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Allen, Ramsey Assoc. and Mr. Lloyd Ramsey, for appellees.
Messrs. Krause, Klein Assoc., Mr. Austin T. Klein, Mr. William Droe and Mr. Jeffrey F. Slavin, for appellant.
A party seeking relief from a default judgment pursuant to Civ. R. 60(B) must show (1) the existence of a meritorious defense, (2) entitlement to relief under one of the grounds set forth in the rule, and (3) that the motion is made within a reasonable time. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146. In the instant case, the appellant has failed to allege operative facts which meet the second and third requirements of this test.
Civ. R. 60(B) is a remedial rule and should be liberally construed, Colley v. Bazell (1980), 64 Ohio St.2d 243, 248. Nevertheless, absent a showing of one of the grounds for relief set forth in Civ. R. 60(B)(1) through (5), duly entered default judgments must be accorded a degree of finality. As noted in GTE Automatic Electric, supra, at pages 149-150, "[r]egardless of whatever else may be said of a default judgment, it is a judgment. It is as good as any other judgment. It is a final determination of the rights of the parties."
Here the movant showed none of the grounds enumerated in Civ. R. 60(B)(1) through (4) nor "any other reason justifying relief from the judgment." Civ. R. 60(B)(5). In attempting to explain her failure to timely answer the complaint, the movant claimed only that judgment never should have been granted against her, that the complaint was "precatory," and that she "never anticipated that * * * [the] court would render a judgment against the Defendants." The appellant also contends that the court should not have awarded attorney's fees of $1,450 to the plaintiffs.
These contentions merely challenge the correctness of the court's decision on the merits and could have been raised on appeal. Rule 60(B) relief, however, is not available as a substitute for appeal, see Colley v. Bazell, supra, nor can the rule be used to circumvent or extend the time requirements for filing an appeal. Town Country Drive-In Shopping Centers, Inc. v. Abraham (1975), 46 Ohio App.2d 262, 266. In the instant cause, the defendants simply disregarded or ignored their obligation under the Civil Rules to timely present their defenses.
Nor does a lapse of nearly two years constitute a "reasonable time" within which to seek Rule 60(B) relief absent unusual circumstances not present in this case.
Because the movant failed to allege any reason justifying her failure to timely answer the complaint, and because her Rule 60(B) motion was not made within a reasonable time, the trial court did not abuse its discretion in failing to grant relief from the default judgment.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
W. BROWN, SWEENEY, HOLMES and KRUPANSKY, JJ., concur.
CELEBREZZE, C.J., LOCHER and C. BROWN, JJ., dissent.
The majority holds that the appellant did not qualify for relief under Civ. r. 60(B). In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, the three requisites imposed upon a party seeking to have a default judgment vacated are set forth. I disagree and conclude that the facts presented in this case satisfy these requirements. First, a meritorious defense was presented; secondly, the motion was made within a reasonable time; and, lastly, the movant is entitled to relief under Civ. R. 60(B)(5).
This case is based upon a motion to vacate a default judgment with damages assessed. However, the prayer for damages in the complaint was predicated upon a fence being erected which would obstruct appellees' driveway. The fact that a fence was never constructed is not disputed by appellees. Even though they did not suffer the damages alleged in the complaint, appellees were awarded $1,450 in a default judgment. Appellees contend that this award represented attorneys fees which they are entitled to receive. However, attorney fees are recoverable only when an award for punitive damages is proper. United Power Co. v. Matheny (1909), 81 Ohio St. 204, 211; Langhorst v. Riethmiller (1977), 52 Ohio App.2d 137, 142; Gustafson v. Cotco Enterprises, Inc. (1974), 42 Ohio App.2d 45, 52. Because appellees did not sustain the alleged damages, punitive damages and attorney fees were not appropriate. Therefore, the absence of the fence and the resulting lack of damages present a meritorious defense, as required by GTE Automatic Electric, supra.
The second requirement for relief pursuant to the rule is that the motion shall be made within a reasonable time. Courts have allowed a considerable time lapse when the time was reasonable under the circumstances. Appellant contends that she was not aware of the judgment until appellees instituted proceedings to execute on it and that she filed a motion to vacate within one month of learning of the judgment. Considering the circumstances in this case, the filing was within a reasonable time as required for a motion to vacate. Appellant could not have perfected a timely appeal, as suggested by the majority, because she was not aware of the default judgment.
Pursuant to the comparable federal rule, courts have found more than one year to be reasonable. See Clarke v. Burkle (C.A. 8, 1978), 570 F.2d 824, three years; United States v. Cirami (C.A. 2, 1977), 563 F.2d 26, over two years; Wink v. Rowan Drilling Co. (C.A. 5, 1980), 611 F.2d 98, certiorari denied, 66 L. Ed. 2d 26, over a year. But, see, United States v. Manos (S.D.E.D. Ohio 1972), 56 F.R.D. 655, 12 years is not reasonable.
The facts also satisfy the last requirement under GTE Automatic Electric, supra, because the claim comes within the bounds of Civ. R. 60(B)(5). According to this provision, a court may relieve a party from a judgment for any other reason (than set forth in the previous sections) justifying relief from judgment. Justice requires granting the motion to vacate the default judgment for damages which never existed.
Concluding that the requirements for a motion to vacate have been satisfied is buttressed by the purpose of the rule of permitting relief in the interest of justice. As stated by the majority opinion, Civ. R. 60(B) is a remedial rule and should be liberally construed. Therefore, when we apply these principles, the movant is entitled to relief from the judgment.
The fact that we are dealing with a default judgment should also be remembered. This court previously has applied a standard of liberality when considering a motion to set aside a default judgment. Any doubt should be resolved in favor of the movant so that cases may be decided on the merits. GTE Automatic Electric, supra, at page 151.
Blois v. Friday (C.A. 5, 1980), 612 F.2d 938; Medunic v. Lederer (C.A. 3, 1976), 533 F.2d 891; Rooks v. American Brass Co. (C.A. 6, 1959), 263 F.2d 166.
For these reasons, the appellant is entitled to relief from the default judgment and I dissent.
LOCHER and C. BROWN, JJ., concur in the foregoing dissenting opinion.